from the indecently-speaking dept

We've been following a series of cases over the past few years concerning the FCC's attempt to fine TV stations for "indecency." These cases include "fleeting expletives" like Bono cursing during an awards show ("this is fucking brilliant") to fleeting nudity like the Janet Jackson wardrobe malfunction... and, the case that just got decided: NYPD Blue's episode where actress Charlotte Ross is shown getting ready for a shower, dropping her robe and having her bare buttocks on screen for approximately seven seconds. As we noted, when the FCC originally went after ABC for this footage, it helped drive millions of people to go seek out the footage online, getting her butt a lot more attention than if they'd just let it go. Either way the case has meandered through the courts, with an early decision saying the policy was a First Amendment problem and a later ruling striking down the fine.

Some of the cases involving both fleeting expletives and fleeting nudity got merged into one along the way. The Supreme Court actually already had this case a few years ago and rejected one of the lower court decisions that found the policy "arbitrary and capricious," but failed to rule on whether the fine was legal. The appeals court, on remand, still tossed out the ruling, now saying that if the policy wasn't arbitrary and capricious, it was too vague.

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

That said, the Court (as it has been doing with annoying regularity these days) was very, very careful to try to make the scope of the ruling as narrow as possible. In this case, it specifically refused to rule on the First Amendment question of whether or not the FCC's indecency policy violated the First Amendment. That's too bad. Justice Ginsburg did issue a very, very brief concurrence, in which she suggested that the Court really ought to review its original ruling (FCC v. Pacifica) which established that the FCC could issue fines for indecency on TV. In other words, she seems to think that it's time to review the First Amendment question:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.

Furthermore, even in the majority opinion, there are hints of concern about the First Amendment issues raised here:

This would be true with respect to a regulatory change this abrupt onany subject, but it is surely the case when applied to theregulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett
v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

Hopefully, this means that if the First Amendment question does finally come before the court, it's ready to overturn that earlier ruling. Of course, I'm still amazed at how this very same Supreme Court always seems to ignore the "obvious chilling effect" issue when it comes to cases involving copyright law... but that's another story for another post.

Reader Comments

this very same Supreme Court always seems to ignore the "obvious chilling effect" issue when it comes to cases involving copyright law'

that's because it must be more beneficial to do so. if it weren't, they would address the issue. strange how nothing is more important than copyright any more. i wonder who it was that made that decision and signed off on it so the courts knew exactly who they had to obey?

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When you consider that the court is made up of judges appointed by the two parties you realize how beholden to their party they are. They cannot rule against the illegal activities their party is doing while in power. They are the one branch of government that I would expect to not be corrupted but it appears that politics has finally invaded the courts.

another SCOTUS punt

That said, the Court (as it has been doing with annoying regularity these days) was very, very careful to try to make the scope of the ruling as narrow as possible.

This has been really disappointing about the SCOTUS rulings lately. They've been making their rulings based on essentially the little procedural issues and not the big picture issues. People look to the SCOTUS to rule on the big picture issues and create precedent that can be applied to similar cases and provide clarity on (Constitutional) law.

You look for rulings that say "this is how the law should be interpreted" instead you get "umm... you forgot to check box 3, so we're throwing the case out."

Ruling the procedural details really accomplishes little in terms of clarity or precedent. Sure, the conclusion was "correct" but it is also essentially worthless to any future cases. Expect to see a 1st ammendment challenge very similar to this case in the next 10 years.

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The idea behind a life term for the justices is so that once appointed, they are not beholden to any party or interest group. Also, the general spectrum of activist/ strict-constructionist that judges fall into doesn't quite align to the liberal/conservative views of the parties. There is something else going on than simple corruption or party allegiance.

Why we need those rules

I'm guessing that when TVs first came on the market there was no way to turn the channel or turn them off. So they needed crazy laws and they just kinda stuck around.

That would be the only sane reason for such puritanical restrictions on content in the first place.

Maybe I'm the insane one, because when I find something objectionable that I don't want to look at or hear, I don't watch or listen. I can change the channel/station, close the window, turn off the device. It's never once occurred to me that I need to contact the legislature and demand that regulations be put in place to protect me from content that I don't have to experience.

Re: another SCOTUS punt

To be fair, we also don't want SCOTUS being too eager to make far-reaching constitutional rulings without a good reason to do so - and we also don't want procedural issues colouring those rulings.

That said, I agree that it seems like the court is punting a lot lately, and disappointingly avoiding some key questions. I'm just noting that as much as we want the supreme court to know how to be bold, we also want it to know how to show restraint.

Part of the problem is that Sotomayor had to recuse herself...

because she served on the case in a lower court before being nominated. Justice Clarence Thomas, the last time this same case came around (but on administrative law grounds) also indicated in a separate opinion that he would like to overrule Red Lion and Pacifica (the cases that give the FCC power over broadcast) because technology has rendered it irrelevant. Justice Ginsburg's concurrence referenced his.

There are at least two votes for the First Amendment question. It's quite possible that it split 4-4, with Sotomayor recused, preventing a wider opinion.

US mainstream TV left the '50s by going to cable.

The FCC has no power over cable television, just the broadcast networks. The audience has increasingly left the broadcast networks and gone to cable, which is part of why the FCC is increasingly irrelevant. (Broadcast is not as "uniquely pervasive" as it was back when the original cases were decided.)

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Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." There was little concern that the judiciary would be able to overpower the political branches; congress controls the money flow and the President controls the military. Courts, on the other hand, do not have the same clout from a constitutional design standpoint. The judiciary depends on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior.

Now think about when the courts are the worst. This is during times such as the Gilded Era, the Lochnear Era, or the courts of Roberts today with Citizens United.

In other words, mostly conservative rulings can have dire effects on the people. When liberals have the strength of the courts, you will have great times such as the Progressive Era from FDR's time with a minor exception being Roe V Wade (which is what Republicans are currently trying to overturn with a severe backlash)

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ... To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.

And this is why they should represent precedents instead of the current norm of judicial and political activism.

The liberals of that time, Thomas Jefferson and James Madison, ultimately wanted power given to the states and the people. This is why TJ was skeptical of copyright as well as very angry at Chief Justice Marshall for the 1803 decision that gave rise to judicial review in Marbury v Madison.

This was first enacted under Jefferson's rule. It's not a coincidince that SCOTUS didn't use the power again until after his death:

In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions. They cannot issue a mandamus to the President or legislature, or to any of their officers.

Presidents can ignore the ruling and do such as Andrew Jackson. The point here is that the Supreme Court is meant to be the weakest of our three branches, not the strongest.

Due Process

From the ruling:

The fundamental principle that laws regulating persons or entities must give fair notice of what conduct is required or proscribed [...] is essential to the protections provided by the Fifth Amendmentís Due Process Clause

Contrast this with the tortured redefinition of "Due Process" that the executive branch came up with to justify targeted drone strikes/assassinations. i can only hope this was intentional on the part of SCOTUS.

Re: US TV

So by saying that the FCC didn't give fair warning to the networks regarding what was and wasn't acceptable, they've cleared the way for the FCC to continue to issue such fines in the future, as long as they give the networks fair warning beforehand?

SCOTUS are C students

If I had to grade SCOTUS I would give them a C-. They do just enough work to pass the class, but no more.

It's truly disappointing. Imagine if SCOTUS had ruled a few years ago on the First Amendment question. How much in lawyers fees would have been saved? How much speech would not have been chilled?

SCOTUS clearly cares more about the procedural issues than the Constitutional issues, or even the damage that is happening and will continue to happen until someone else gets sued and spends the $$$ to go through multiple levels of appeals to get back to SCOTUS, only to have their case punted again on a technicality...

A quick Google search isn't turning up anything on the FCC getting on FOX's ass about showing Mal's ass. Is there some reason that this seven seconds of naked butt is worse than Firefly's, aside from something arbitrary like "if it turns me on, it's porn"?